Page 1 Click here to visit our website A Daily Bulletin listing Decisions of Superior Courts of Australia Compiled for those in Insurance Friday 4 July 2008 Bridges Financial Services Pty Ltd v Brown [2008] FCA 992 Federal Court of Australia Lindgren J (in Sydney) Freezing of assets – respondent employed as authorised representative of first applicant which operates planning & stockbroking business & has network of authorised & accredited financial planners - termination of employment - applicants claiming relief in nature of payment of money - allegation that respondent engaged in various forms of conduct in contravention of Corporations Act 2001 (Cth) & Fair Trading Act 1987 (NSW) – also allegations of breach of contract of employment & breach of fiduciary duties – freezing orders made. Bridges Financial Services Mitchell v Bailey (No 2) [2008] FCA 692 Federal Court of Sydney Tracey J (in Melbourne) Commonwealth Electoral Act 1918 (Cth) - Court of Disputed Returns - House of Representatives – Electoral Division of McEwen in Victoria - principles to be applied in determining whether ballot- paper formal or informal under the Act – whether initials on a ballot-paper render ballot-paper informal -"illegal practice" – "voter’s intention." Mitchell Corporate Sports Australia Pty Ltd v Australian Rugby Union Ltd [2008] FCA 993 Federal Court of Australia Gilmour J (in Perth) s45(2)(a) & (b) Trade Practices Act 1974 (Cth) - rugby union test match between Australia & South Africa to be held on 19 July 2008 at Subiaco Oval in Perth – Subiaco Football Club Contract Condition - corporate hospitality packages - ticket condition prohibits resale of ticket at premium – application for interlocutory injunction declined. Corporate Sports Australia, and Trade Practices Act 1974 (Cth) – s45 Page 2 Click here to visit our website Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156 Court of Appeal of New South Wales Spigelman CJ; Hodgson JA & Handley AJA Judicial review - prosecutions under ss15 & 16 Occupational Health and Safety Act 1983 (NSW) – fines imposed on claimants by Industrial Relations Commission of New South Wales - claimants invoking supervisory jurisdiction of Court, seeking orders to quash first instance decision of Commission &/or the two decisions of the Full Bench - criminal law – inquiry into conviction – summons dismissed. Kirk, and WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 revised - 19/01/2005 – decision Walton J Vice-President – operation of All Terrain Vehicle. Glenhaven Property Holdings Pty Ltd v Oaktwig Pty Ltd [2008] NSWCA 154 Court of Appeal of New South Wales Spigelman CJ; Giles & Tobias JJA Professional negligence – SEPP5 development State Environmental Planning Policy No 5 - primary judge had dismissed professional negligence - action: see link below - second appellant property developer - first respondent a company controlled by second respondent conducting an architectural & design services business – appeal dismissed. Glenhaven Property Holdings, and Oaktwig – James J, 28 June 2007. Sleiman v Commissioner, NSW Department of Corrective Services [2008] NSWSC 617 Supreme Court of New South Wales Hall J Felons (Civil Proceedings) Act 1981 (NSW) – application by prisoner for leave to commence civil proceedings – whether the proceedings abuse or process – prisoner seeking declaratory relief – conditions of custody said to amount to segregated custody - leave granted to the plaintiff/applicant under s4 of the Act to initiate proceedings. Sleiman John Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11 Court of Appeal of Australian Capital Territory Refshauge J Whether order interlocutory or final – whether appeal incompetent – order appeal from single judge: see link below to 2005 decision - order final & appeal competent - security for costs – respondent to appeal seeking security – grounds for granting – impecuniosity of appellant – factors in determining whether to order security – security ordered – detailed consideration of case law – an interesting judgment. John Benjamin, and Goodberry Holdings – decision of Crispin J 13 December 2005 – undertaking – injection of capital. Page 3 And on American Independence Day 2008… Click here to visit our website 4 July 1776 – date of the adoption of the Declaration of Independence by the thirteen British Colonies in America, stating that they would no longer submit to the authority of the British Crown – after seven years of fighting (1775 – October, 1781), their cause triumphed & their existence as a separate nation was recognised. The man who led them to victory was George Washington, who in 1789 was elected the first President of the United States of America. Declaration of Independence A Federal Constitutional Convention took place in 1787 for the purpose of framing a Constitution. In 1791, a Bill of Rights, the name by which the first ten amendments to the U.S. Constitution are known, came into effect. The Second Amendment provides : “ A well regulated militia, being necessary to the security of a free state, the right of the people to keep & bear Arms, shall not be infringed.” District of Columbia v Heller, 554 U. s ____ (2008) Supreme Court of the United States - 26 June, 2008 Scalia J delivered the opinion of the court, in which Roberts CJ & Kennedy, Thomas, & Alito JJ joined. Stevens J filed a dissenting opinion, in which Souter, Ginsburg & Breyer JJ joined. Breyer J filed a dissenting opinion in which Stevens, Souter & Ginsburg JJ joined. Second Amendment – whether right to keep & bear arms is a right of individuals or a collective right that applies only to state-regulated militias - the Constitution was written to be understood by the voters, ordinary citizens in the founding generation – held 5:4, an individual right, (but the Second Amendment right is not an unlimited right.) District of Columbia v Heller Oscar in America In 1882, Oscar Wilde (1854 – 1900) embarked on a very successful tour of America lecturing on aesthetics – he recorded his impressions - at a saloon in Leadville, a town in the Rocky Mountains where silver was mined, he noted with approval a sign over the piano: "Please don't shoot the pianist; he is doing his best.” He said later: "I was struck with this recognition of the fact that bad art merits the penalty of death, and I felt that in this remote city, where the aesthetic applications of the revolver were clearly established in the case of music, my apostolic task would be much simplified, as indeed it was." Because the miners mined for silver, he read to them from an autobiography of Benvenuto Cellini (1500 – 1571 : sculptor, goldsmith & silversmith) : “I was reproved by my hearers for not having brought him with me. I explained that he had been dead for some little time which elicited the inquiry: “Who shot him ?” .